Markay v. Abdur-Rahman

November 13, 2008

JEROME MARKAY, PLAINTIFF,v.DR. ABDUR-RAHMAN, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On September 4, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.

The magistrate judge recommended that defendants' motion to dismiss for failure to exhaust administrative remedies be granted. In his October 30, 2008, objections, plaintiff states that he agrees that he failed to exhaust administrative remedies as to all claims. Plaintiff requests that the court dismiss this action without prejudice and allow him to refile his case without "refiling in forma pauperis." Plaintiff appears to be requesting that he be allowed to refile his claims without being assessed the filing fee. The court does not have the authority to grant this request. If plaintiff refiles his claims in a new action, he will be assessed the filing fee.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 4, 2008, are adopted in full; and

2. Defendants' May 12, 2008, motion to dismiss (Docket #16) is granted and this case is closed.

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